Wellington
A guest blog by Doug Calhoun
In an
The Patents Bill proposed to “address” the Wai 262 claims by establishing a Maori advisorycommittee to advise the Patents Commissioner (on request) on whether:
“a) an invention claimed in a patent application is derived from Maori traditionalknowledge or from indigenous plants or animals; and
(b) if so, whether the commercialexploitation of that invention is likely to be contrary to Maori values.”
The Commissioner must consider but is not bound by the advice of the Committee.
Quite apart from whether or not it implements the Wai 262 Report recommendations, the provisioncontains the vague and subjective expressions “derived from” (derived to what extent?); and“contrary to Maori values”.
The critical question that is left unanswered is, so what?
The Patents Bill requires the Patents Commissioner to examine every patent application and if itis found to meet the patentability criteria – to grant a patent. But it does not specify what thePatents Commissioner is supposed to do if the Committee advises that an invention is derived fromtraditional knowledge and that its exploitation is likely to be contrary to Maori values. Neither isamong the criteria the Commissioner is to consider.
The Green Party Amendment
The Green Party introduced a proposedamendment (SOP124) on 11 September. This will come up for a vote during the committee stage in thenext few weeks. The amendment would declare that organisms and traits in organisms are notpatentable inventions. “Organism” would mean the same as it does in the Hazardous Substances andNew Organisms (HSNO) Act. It would include both naturally occurring and modified organisms.
The amendment seeks to exclude “traits in organisms”. But patents are granted for products orprocesses that are a practical application of a trait - they are not now and never have been grantedfor the traits themselves. The HSNO definition of “organism” includes a microorganism. Such anexclusion is not permitted under Article 27.3 of the TRIPS Agreement.
Steffan Browning, in discussing the amendment in the second reading debate, said:
“Allowing the passing of this bill without supporting my Supplementary Order Paper willlead to the continued blocking of pure research, of open research. Private profit-making from ourcollectively owned genes and resources will, importantly, continue the process of stealingresources, this time including the intellectual property of Maori—removing it from the commons forprivate gain.”
This argument was made by Greenpeace New Zealand to the GM Royal Commission.
“117. The economic benefits of intellectual property systems aregenerally considered to be positive. Removing biotechnology developments from coverage by patent orproperty rights systems would not necessarily have the effect that opponents to such applicationswant. New inventions or ideas would probably be kept as trade secrets or “know how”, and, in theabsence of the disclosure required by patents and PVRs, be held even more tightly. Not allowing NewZealand inventors and investors to protect their work under an IPR would leave them in an invidiousposition against the rest of the world. It would also place New Zealand in breach of its obligationsunder major trade agreements.”
“118. The Commission sees a need to address some tensions or gaps, notably in the exemptionfor patenting of human beings and their biological processes, and the development of an appropriateframework for the protection of traditional knowledge and taonga of Maori. However, we are notpersuaded that the IPR system is antithetical to the appropriate development and regulation ofgenetic modification.”
This recommendation was followed in both the original Patents Bill and the Bill as amended by theselect committee.
The Green Party proposal is also not an approach recommended in the Wai 262 Report.
The Wai 262 Report
The Report is in three volumes of over 1,200pages. So it is not that surprising that there has not yet been a government response. The interfacebetween patents and the Wai 262 claims is only a relatively small part of its recommendations.
The report reviews developments in science and then analyses its understanding of the concerns ofboth sides in the debate:
“These developments have created a point of potential tension between those who wish toutilise private property rights in the genetic and biological resources of plants and animals tocreate wealth, and kaitiaki who often have very different priorities. We explained above howresearch science is founded on an empirical world view that is blind to many aspects of te ao Maori.Patents, and the commercial system they serve, are likewise at odds with te ao Maori in fundamentalways. The idea that knowledge about the specific properties of a taonga (such as kawakawa or manuka)can be parcelled up and assigned to different owners is, in itself, alien to the relationship-basedworld of mauri and whanaungatanga. As with research science, the patent system is founded on a setof values that are not those of kaitiaki. Its central concerns are the advancement of knowledge andthe protection of commercial interest in that knowledge, rather than mauri or environmentalvalues.
There is also tension between Maori and Pakeha approaches to access to knowledge. Pakeha cultureplaces great value on unrestricted access to knowledge and ideas. This has long been seen as aprecondition to progress. Of course, access to knowledge and ideas even in the public domain isconstrained in Western societies by laws relating not only to IP but also to public safety,defamation, moral standards, and privacy, to name a few. But the principle that access should be asunconstrained as possible is fundamental to Western thinking. By contrast, Maori culture does notplace such great value on free access. Concepts of tapu, mauri, and whakapapa tend to suggest thataccess must be earned. The first priority of kaitiaki is to protect rather than publish information.That is not to say that matauranga Maori is always secret. Far from it. But kaitiaki are often veryuncomfortable when they have lost oversight of readily available matauranga Maori.”
The Report then attempts to measure the dimensions of the square hole and round peg it has beentasked to accommodate:
“ These tensions go to the heart of the ways in which we generate knowledge and wealth inNew Zealand. The central question is whether our current system can accommodate a new set of rightsto be held by kaitiaki communities and individuals who do not share the values upon which the systemwas built.”
… the issues the claimants brought before us were focused on specific but related areas :
The Wai 262 Patent Recommendations
The Tribunal tried to take a balanced approach that both sides could live with:
“As will be seen in the chapters to follow, we do not always agree with the way theclaimants framed this problem, but where we do, we look for ways in which the priorities of kaitiakican be relocated from the margins of legal or policy discourse to the centre, where they can beproperly and transparently weighed against other considerations. Sometimes our recommendations areprocedural – a simple requirement on the Crown to notify or consult with kaitiaki; sometimes werecommend that new substantive standards be introduced – for example, positive obligations onCrown agencies to explore partnership opportunities with kaitiaki; and sometimes we recommendstatutory decision-makers should change – whether by vesting power directly in kaitiaki in somecases or by the creation of new partnership mechanisms.”
“In all cases, the innovations we recommend are designed to express the new generation ofTreaty partnership in which Maori have a meaningful voice in the ongoing fate of their taonga, andthe partnership itself is not static but is being constantly rebalanced.”
“It is no longer possible to deliver tino rangatiratanga as full autonomy in all cases inwhich taonga Maori are ‘in play’, as it were. After 170 years during which Maori have beensocially, culturally, and economically swamped, it will no longer be possible to deliver tinorangatiratanga in the sense of full authority over all taonga Maori. Yet it will still be possibleto deliver full authority in some areas. That will be either because the absolute importance of thetaonga interest in question means other interests must take second place or, conversely, becausecompeting interests are not sufficiently important to outweigh the constitutionally protected taongainterest.”
The specific recommendations that the report makes that might be incorporated in the Patents Billare:
The following are my thoughts of how easy or difficult it might be for the Patents Bill toimplement the five recommendations: